Your Basic Rights as a Union Member
Basic
Union Member Rights
Remember
that employees have Weingarten
rights
only during investigatory interviews, which occur when a
supervisor questions an employee to obtain information which
could be used as a
basis for discipline, or asks an employee to defend his/her
conduct.
Also,
remember that if an employee has a reasonable
belief that discipline or other adverse consequences
may result from what s/he says, the employee has a right to
request Union Representation. Investigatory interviews often relate to
subjects such as:
·
Absenteeism
·
Accidents
·
Damage
to company property
·
Drinking
or drugs
·
Fighting
·
Falsification
of records
·
Insubordination
·
Tardiness
·
Theft
·
Work
Performance
·
Violation
of safety rules
When a supervisor calls an employee to the office to
issue a warning or other discipline, this is not part of the
investigation, and the employee is not entitled to
union representation. The supervisor is announcing a decision and not
questioning the employee.
In
Hennepin County, we have several AFSCME Locals – often two
or more at one site, such as the Work House or the
Government Center.
Stewards
from another AFSCME Local can be called in to sit with an
employee during an investigatory interview, if no one from
your Local is available.
If
a grievable action results, however, your own Local will
carry forward on your behalf.
____________________________________________________________________
Tennessen
Warning (Minnesota
Statutes, section 13.04, subdivision 2):
The
Tennessen Warning informs employees of their rights under
the Minnesota Government Data Practices Act.
At
this time you are about to be asked to supply private or
confidential information about yourself or others. Before
supplying such information, you are hereby informed of the
following conditions:
A.
The purpose of this information is to conduct an
investigation of alleged employee misconduct and to use such
information in determining if such misconduct did in fact
occur, and if so, what, if any, disciplinary or remedial
action should be taken.
B.
You are advised that you are legally required to supply the
requested information as part of your employment
responsibilities.
C.
You are advised that as a consequence arising from the
supplying of this information, you may be required to
testify at subsequent hearings; and/or the data which you
provide may be used to take disciplinary or remedial action
as a result of such a proceeding. You are also advised that
as a consequence arising from the refusal to supply
information, you may be subject to disciplinary action.
D.
You are advised that the following persons or entities may
be authorized by law to receive this data:
▬
Involved Supervisors and Administrators
▬
Labor Union Representatives
▬
Arbitrators and Administrative Hearing
Examiners
▬
Law Enforcement Agencies
▬
State and Federal Courts
▬
Human Rights Agencies
▬
Your Authorized Representative
▬
Minnesota Departments of Employment
and Economic Development, Labor and Industry and
Employee Relations
In
2003, the Minnesota Department of Employee Relations sent
out a memo concerning the used of Tennessen and Garrity
Warnings in misconduct investigations:
Recently
a county attorney’s office declined to prosecute two cases
referred by State agencies. The Tennessen warnings used in
these cases stated a penalty in the form of disciplinary
action to the subject employees for failure to answer the
investigators’ questions. The county attorney determined
that these Tennessen warnings had deprived the employees of
their Fifth Amendment rights under the U.S. Constitution,
because the threat of disciplinary action constituted
leverage to coerce the employee to self-incriminate.
Therefore, the information obtained in the investigative
interviews could not be used in the employees’ criminal
prosecution.
____________________________________________________________________
Weingarten
Rights: Employees
have Weingarten Rights (the right to Union Representation
during investigations) only during investigatory interviews.
An investigatory interview occurs when a supervisor
questions an employee to obtain information that could be
used as a basis for discipline – or asks an employee to
defend his/her conduct. If the employee has a reasonable
belief that discipline or other adverse consequences may
result from what’s said, the employee has a right to
request union representation. Not all management-employee
discussions constitute investigatory interviews – routine
conversations and instructions for doing the job fall into
this area. However, if a supervisory-employee conversation
changes toward investigating performances or situations,
employees should ask for union representation before
continuing.
When
a supervisor calls an employee into the office to issue a
warning or other discipline, this is no longer part of the
investigation, and the employee is not permitted
union representation, unless invited by management. If
questions are asked to develop support for the decision,
however, the meeting may be transformed into an
investigatory interview, at which representation should be
present.
Stewards
play three roles during employer investigations:
1)
to represent and provide advice
2)
to
be an advocate for the employee during the investigation
3)
to
monitor the employer’s investigation
____________________________________________________________________
Garrity
Warning: The
Garrity ruling fundamentally addressed evidentiary issues
with regard to criminal proceedings. The case involved
police officers who were being investigated for alleged
fixing of traffic tickets. During the investigation the
officers were told that anything they said might be used
against them in any state criminal proceeding and they had
the privilege to refuse to answer if the disclosure would
tend to incriminate them, but if they refused to answer they
would be subject to removal from office. In summary, the
court held that a later prosecution cannot constitutionally
use statements (or their fruits) coerced from the employee
by a threat of removal from office if he/she fails to answer
the question.
A
Garrity warning waives the government’s right to
discipline an employee for remaining silent, but preserves
its right to use any statement the employee voluntarily
makes against him/her in a subsequent criminal prosecution.
Notably absent is information about an employee’s
Weingarten Rights. Despite all the warnings and legal
language, employees still have a right to union
representation. Employees need to remember that despite
assurances that any information will not be used against
them in a criminal proceeding; there are no assurances that
the information will not be used against them in
administrative or disciplinary proceedings.
Garrity
Warning Public Employees Only:
A
warning given to an employee by an employer during an
employment investigation that requires the employee to
either provide information or be discharged for refusing to
provide information. If such a warning is given, the
employee may object to the use of such information in a
subsequent criminal proceeding on the basis that a
self-incriminating statement was made under duress.
Sample
Garrity Warning:
I
wish to advise you are being questioned as part of an
official investigation of your employer. You will be asked
questions specifically, directly and narrowly related to
performance of your official duties or fitness for office.
You are entitled to all the rights and privileges guaranteed
by the law and the Constitution of the United States,
including the right not to be compelled to incriminate
yourself. I further wish to advise you that if you refuse to
testify or to answer questions relating to the performance
of your official duties or fitness for duty, you could be
subject to discharge. If you do answer, neither your
statement, nor any information or evidence which is gained
by reason of such statement, can be used against you in any
subsequent criminal proceedings. However, these statements
may be used against you in relation to subsequent
discipline.
____________ (Date)
____________________________
(Employer
Signature)
____________________________